Employers are warned not to take false comfort in the recent Federal Court decision in which it was upheld that an employer could dismiss an employee for refusing to attend a medical examination to determine his fitness for work.

The employee argued he had a common law right, freedom or immunity that no person may be required to submit to a medical examination against his or her will. The single Federal Court judge upheld this view finding that ‘as a general proposition a person is not obliged to submit to a medical examination without his or her consent’.

The employer agreed that it had no contractual right to order the employee to attend a medical examination. However, the Federal Court upheld the Fair Work Commission findings that the order to the employee was made within a clear and unambiguous legislative framework requiring the employer, as a coal miner operator, to comply with its health and safety obligations. Due to these specific circumstances, the direction to the employee to attend a medical examination to assess his fitness to work was found lawful.

The case highlights the complexity facing employers wanting to order employees to undertake a medical examination.

The High Court has found that employers owe a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. But in exercising this duty of care employers cannot assume it automatically extends to a right to order an employee to be medically examined to ascertain their fitness to work.

Without a contractual right or unambiguous legislative authority, subjecting an employee to a medical examination without his or her consent may be considered to be an assault.

If you wish to seek advice on this or any other employment matter, please contact:

Jim Rutherford
Principal
Harwood Andrews
T: 03 5226 8579
E: jrutherford@harwoodandrews.com.au

Sonia McCabe
Senior Associate
Harwood Andrews
T: 03 5226 8558
E: smccabe@harwoodandrews.com.au